Patrick v. Commercial Insurance

11 Johns. 9 | N.Y. Sup. Ct. | 1814

Kent, Ch. J.

delivered the opinion of the court. 1. The question of seaworthiness ought not to be disturbed. The loan of a cable and small anchor to a neighbouring vessel in the harbour, was not a strong fact in support of the allegation, and the weight of evidence was in favour of the finding of the jury.

2. As the defendants, by the contract, were to take “ no risk in port but sea risks,” it became material to ascertain whether the loss happened in port; and on this point there seems to be no room for doubt. The place where the ship lay at anchor when the storm arose, and the place where she was subsequently stranded, were both of them equally in port. The words are general, no risk in port, and they do not refer to the port of departure or the port of discharge, in exclusion of all other ports into which the vessel might of necessity enter during the course of her voyage. The word port seems here to have been used in a general sense, as contradistinguished from the high seas; and no good reason occurs why the term should be confined to the two ports mentioned in the policy, in opposition to its popular and grammatical meaning. The general risks assumed by the defendants equally apply to all ports into which the vessel would of necessity enter, and the limitation of that general risk ought to be equally coextensive. The loss, therefore, happened in port. If, however, the words of the policy were to be construed to refer to the port of discharge, and to none other, the weight of evidence is, that the port of Cadiz embraced the place where the ship was stranded. The position of the port of Cadiz, and the commercial privileges and jurisdiction of that port, are matters of general and public notoriety, and go strongly to show the fact, to which some of the witnesses attested, that the shore on which the ship was driven by the tempest, was part of the port.

3. The only important and serious question in the case is, whether the loss was or was not by sea risk. The case turns wholly upon this fact. The ship was stranded by the storm, and the place where she was stranded was, at the time it happened, though not at the time when the contract was made, out of the actual jurisdiction of the port and government of Cadiz, and under the actual jurisdiction of a foreign and hostile force. The vessel and cargo were destroyed by this force within 48 hours after the ship was stranded, and before any experiment was made to relieve her.

The question at the trial was, whether the ship was so disabled by the stranding, or was cast so far on shore, as not to be worth reclaiming, or to be incapable of recovery. It is well understood that stranding is not, ipso facto, a total loss. It may be, and it often is, followed by shipwreck, or becomes, by other means, a total loss; but it is not, of itself, a loss that will justify an abandonment. It is always, in such cases, a question of evidence, whether the stranding be attended with such circumstances as to produce a total loss, either because it is followed by shipwreck, or other destruction of the property, or because the vessel cannot be set afloat, or because she cannot be repaired at the place of the peril, for want of materials or workmen, &c. In this case it was submitted to the jury, upon the testimony, whether the vessel, was so stranded that she could not have been got oflf at an expense of half her value. The jury have decided this point in the negative, and as there was a contrariety of evidence on the point, the court do not think proper to interfere with the verdict, although some of us are not perfectly satisfied that the weight of evidence warranted that conclusion.

The motion to set aside the verdict is denied.

Motion denied.